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â€œI am one of a group of property owner that own land dominant to another estate. We have used the same road to access our land for over 30 years. It is currently 1.3 miles across this servient property and we maintain it ourselves. The owners of the servient property now want to change the location of the road and make it go way around the back of their property, increasing the distance to 3.5 miles. They are bearing the cost of construction of this new road. This is all dirt road and these owners say that we will be responsible for maintaining it. They are also to tear up the existing road on completion of the new road. The entire area was once owned by the same family, about 2000 acres.
Two brothers (August and Gilbert) and a sister (Norma) bought the land from their parents and divided it with no recorded easement. The sister gave it it her daughter (Jolene), and we bought it from the daughter. Gilbert kept the part closest to the public road. In our deed from Jolene, she sites easement as the existing roadway. This road has been used now for over 60 years. There is also a recorded affidavit from Norma’s (the mother of the woman we bought the land from) husband and brother in law (from 1976) that states she has used the existing road way openly, notoriously, and adverse to the rights of Gilbert for over 30 years. If we have anything, do we have a prescriptive easement, an implied easement, an easement by estoppel, or an easement by prior use? If we have any one of these, do they typically guarantee the course of the existing road, or just a road, even if it is longer in distance, more expensive to maintain, decreases our property values, and increases response time from emergency vehicles? Thank you tremendously for your insight.â€
You’re certainly asking the right questions, and the real answer is, it depends on what the judge (or jury) thinks if you end up in a lawsuit. However, my educated guesses:
If I were suing on your behalf, I would probably make all the arguments you list (prescriptive easement, implied easement, etc.) (and possibly some others-if your parcel is “landlocked,” you may be able to argue easement by necessity) and see which, if any, stick. It sounds like you have a pretty good argument for an implied easement (that specifying the easement was overlooked when the property was subdivided) or failing that prescriptive (adverse use for the applicable period in your area).
So let’s assume that you have some sort of easement (since if you fail that point, it doesn’t matter where it is). If so, it is linked to a particular physical area, and the owner of the servient tenement doesn’t get to unilaterally choose to move it. You could certainly come to an agreement to do so (and if you do, I strongly suggest you get the new easement in writing, recorded against all the properties). And in the discussions for that agreement, you could shift some of the additional maintenance costs to the servient owner.
That’s simply a matter of negotiation. Your negotiating leverage is that you could, if push came to shove, sue to keep the easement where it is, which would no doubt put a monkey wrench in your neighbor’s development plans.